Terms of Use

OUTDOOR-CREATIONS

CONDITIONS OF CONTRACT FOR DOMESTIC LANDSCAPE WORKS

(ENGLAND AND WALES)

1. DEFINITIONS AND INTERPRETATIONS

1.1 In these terms and conditions the following definitions apply:-

“Client”: the addressee identified in the Estimate and in the Acceptance of Estimate form.

“Commencement Date”: the date on which the Contractor commences the Works.

“Completion Date”: the date on which the Contractor notifies the Client that the Works are completed.

“Conditions”: Outdoor-Creations Conditions of Contract for Domestic Landscape Works (England and Wales)

“Contractor”: the person(s), firm or company identified in the Estimate letterhead, and in the Acceptance of Estimate letterhead.

“Contract Sum”: The sum entered on the Acceptance of Estimate form, no adjustment shall be made to such sum except as provided in these Conditions.

“Contract”: consists of these Conditions, the Estimate, the Acceptance of Estimate form, and any sketches or drawings referred to therein.

“Estimate”: shall have the meaning given at clause 3.1.

“Site”: means the address set out below the addressees name in the Estimate and in the Acceptance of Estimate form, unless otherwise defined within the Estimate.

“Variation”: shall have the meaning given at Clause 3.5.

“Works”: the works identified in the Estimate, and accepted in the Acceptance of Estimate form, including (where appropriate) the supply of goods, materials, and labour to be carried out at the Site in accordance with these Conditions.

1.2 These Conditions shall be deemed to be incorporated into any Contract, between the Client and the Contractor and shall take precedence over any other terms and conditions whether introduced before or after the date of the Estimate (unless expressly identified and agreed in writing by the Client).
1.3 No deletion, substitution or amendment to the Conditions shall take effect unless expressly agreed in writing by the Contractor.
1.4 If there is any inconsistency between the Estimate and any sketches or drawings, the Estimate shall prevail.

2. CONTRACT WORKS

2.1 The Contractor shall carry out and complete the landscape works described in the Contract in a good and workmanlike manner.
2.2 The Client shall obtain all permissions, give all notices and pay all fees required under any Act of Parliament or any regulation or byelaw of any local authority or statutory undertaker or other authority having any jurisdiction with regard to the Works and the Client shall indemnify the Contractor against any claim, proceedings, loss or expense resulting from the Client’s breach of this clause in whole or in part.

Outdoor Creations is the trading name of PAB Landscapes Ltd. PAB Landscapes Ltd is registered in England & Wales under company number 7077490 Registered Office: 269, Lincoln Road, North Hykeham, Lincoln, LN6 8NH

3. CONTRACT SUM

3.1 The Contractor shall provide to the Client an estimate in writing specifying the Works to be carried out and a breakdown of the cost of the Works (“the Estimate”).
3.2 The Estimate shall remain open for acceptance by the Client for 30 days from the date of the Estimate. If the Contractor does not receive the signed Acceptance of Estimate within this period, the Estimate will lapse and be deemed to have been withdrawn.
3.3 If the Client accepts the Estimate in writing, (by entering an amount and signing the Acceptance of Estimate), within the period stipulated in Clause 3.2, the amount so entered by the Client shall become the Contract Sum and no adjustment shall be made to the Contract Sum except as provided in these Conditions.
3.4 The Contractor reserves the right to require the Client to provide a banker’s reference upon request. If the Contractor requests a banker’s reference a binding contract will not come into existence until the Client has provided a banker’s reference, which is satisfactory to the Contractor. Otherwise a binding contract will come into existence when the Client accepts the Estimate in writing in accordance with Clause 3.3.
3.5 The Client may issue to the Contractor reasonable instructions to vary and modify the quantity of the Works (“Variation”)
3.6 All Variations given by the Client must be given in writing, or by using the Contractors “Confirmation of Instruction” form. The Contractor is not under an obligation to carry out a verbal instruction until it is confirmed in writing, except in the case of an instruction being issued by the Client in an emergency. All instructions issued in an emergency for whatever reason shall be confirmed in writing within 3 days. If an emergency instruction for whatever reason is not confirmed in writing within 3 days, the Contractor shall be entitled to be paid for work properly carried out in accordance with that instruction.
3.7 If the Variation has been given by the client in writing and will alter the cost of carrying out the Works, the Contractor will provide a written Estimate, and an Acceptance of Variation Estimate form for the cost of carrying out the Variation. If following receipt of that Estimate the Client wishes to proceed with the Variation, the Client shall confirm his instruction to proceed with the Variation to the Contractor by signing and returning the Acceptance of Variation Estimate form. If the Variation has been given by the Client using the “Confirmation of Instruction” form, and if the Variation will alter the cost of carrying out the Works, the details including cost alteration will be entered on the form. If the Client wishes to proceed with the Variation, the Client shall confirm his instruction to proceed with the Variation to the Contractor by signing and returning the Confirmation of Instruction form.
3.8 If the Client and the Contractor have not agreed or cannot agree the cost for the Variation in accordance with Clause 3.7, the Client can either withdraw the instruction or instruct the Contractor in writing to proceed with the Variation and the Contract Sum will be adjusted as follows:

3.8.1 where any additional, substituted or omitted work is of similar nature or character to any parts of the Works such works shall be valued by reference to the cost breakdown set out in the Estimate;

3.8.2 otherwise such work shall be valued at fair rates and prices and any additional payment due to the Contractor shall be added to the Contract Sum.

4. PAYMENT

4.1 The Contractor shall be entitled to receive payments at the intervals stated in the Estimate under “Payment Terms”. If no payment interval is agreed, full and final payment shall become due upon the day the Contractor notifies the Client of completion of the Works.
4.2 Without prejudice to the Contractor’s rights and remedies, if the Client shall fail to pay as provided in this clause 4, the Contractor shall be entitled to suspend Works 2 days after giving written notice to that effect to the Client.
4.3 TheClientshallpaytotheContractoranyvalueaddedtaxproperlychargeableonsupplytotheClientofanygoods and services under these Conditions.
4.4 If any sum due to be paid by the Client to the Contractor in terms of Clause 4 is not received by the Contractor on the due date for payment then, without prejudice to any other legal remedies available to the Contractor, the Contractor shall be entitled to charge interest on the outstanding part of such sum at 4% (four per cent) per annum over the base rate of the Bank of England from time to time until such sum is paid.

5. COMMENCEMENT, COMPLETION, DELAY AND DISRUPTION

5.1 The Client shall give to the Contractor full possession of the Site together with proper and adequate access to allow the Contractor to carry out and complete the Works and the Contractor shall commence the Works on Site on a date to be agreed by the Client and the Contractor “the Commencement Date”.
5.2 The Contractor shall take possession of the Site and commence the Works on the Commencement Date and shall

proceed with due diligence until completion of the Works.

5.3 If it becomes reasonably apparent to the Contractor that the progress of the Works is being delayed, the Contractor shall within 7 days of any event or occurrence giving rise to such delay notify the Client in writing of the cause and duration of such delay.
5.4 The Contractor hereby excludes liability to the Client for any loss, cost or damage of whatsoever kind to the fullest extent permissible by law arising out of or as a consequence of its failure to perform or complete the Works by reason of matters beyond the Contractor’s control and which it could not have reasonably foreseen at the date of the Estimate, such as but not exclusive to excessively adverse weather conditions; other variable Site conditions; any delay caused by the Client.

6. MAINTENANCE AFTER COMPLETION

6.1 Following completion of the Works, the Client shall be responsible for the maintenance of the Site including as appropriate, watering and caring of plants and grass.

7, TERMINATION

7.1 Without prejudice to its other rights and remedies, the Contractor may by written notice to the Client forthwith terminate its appointment under the Contract by reason of any one or more of the following:
- 7.1.1 Material breach by the Client of any obligation under this Contract; and/or
- 7.1.2 failure by the Client to make payment in accordance with Clause 4 hereof; and/or
- 7.1.3 the Client becoming insolvent or committing any act of bankruptcy or being a company, making an arrangement with its creditors, or (other than for the purposes of amalgamation or reconstruction), the commencing of winding up proceedings or the appointment of a receiver; and/or
- 7.1.4 breach of the Client’s warranty under Clause 5.1; and/or
- 7.1.5 breach of the Client’s warranty under Clause 8.1; and/or
- 7.1.6 suspension of the Works, in whole or in part, for a period of 5 days whether or not consecutive, due to any act, omission or default of the Client or anyone for whom the Client is responsible,
provided that the Contractor shall have stated the default alleged in a written notice and the Client shall have failed to rectify the default within 5 days of the date of such
notice and provided further that the notice of termination shall not be given unreasonably or vexatiously.
7.2 Without prejudice to its other rights or remedies, the Client may by written notice to the Contractor terminate the appointment of the Contractor if the Contractor:
- 7.2.1 fails to proceed regularly and diligently with the Works; or
- 7.2.2 fails to inform the Client in writing that the Contractor has become insolvent or committed any act of bankruptcy or being a company, making an arrangement with its creditors, or (other than for the purposes of an amalgamation or reconstruction) the commencing of winding up proceedings or the appointment of a receiver.
7.3 The Contractor will be entitled to be paid by the Client for the work properly carried out and/or materials supplied and materials ordered up to the date of termination of the Contractor’s appointment under these Conditions.

8. THE SITE

8.1 The Client warrants that the Site is free of springs, flooding, rock, tree stumps not specified to be removed, mine workings, covered wells or other cavities, running sand, service pipes and cables, sewage or land drains, foundations and sub-structures of former buildings or other hazards or obstructions except those which are reasonably apparent by visual inspection of the surface of the Site or which have been made known in writing by the Client to the Contractor prior to the date of the Estimate.

8.1.1 Without prejudice to his other rights and remedies, if the Client is in breach of the warranty under Clause 8.1, the Contractor may at his sole option proceed with the Works provided the Contractor has provided an Estimate for the work which has been accepted by the Client in writing in accordance with Clause 3.2 and 3.3 and shall be entitled to reasonable payment for any additional works or materials caused by the breach of warranty. Such amount shall be added to the Contract Sum.

9. MATERIALS

9.1 Where any materials have been incorporated into the Works and/or the Site, the property in such materials and goods shall pass to the Client immediately upon their incorporation notwithstanding that the value of such materials and goods may not have been included in any interim payment received by the Contractor.
- 9.1.1 Unfixed materials and goods delivered, placed on or adjacent to the Site and intended for use in connection with the Works shall remain the property of the Contractor until such materials and goods have been incorporated into the works whereupon such materials and goods shall become the property of the Client.
- 9.1.2 The Client and the Contractor may agree payment for off site materials and goods in which case such materials and goods shall become the property of the Client upon payment and shall be so identified.
- 9.1.3 All plants, trees and turf supplied shall be true in name and healthy when planted. The Contractor shall not be responsible for any loss howsoever arising after planting unless the loss suffered is a direct consequence of the Contractor’s failure to perform or to complete the Works as provided. Replacement of any plants found to be defective during the first growing season after planting shall be at the absolute discretion of the Contractor. Replacement will only be considered if the Client has maintained the plants properly and the Client shall have advised the Contractor in writing as soon as the loss or damage became apparent and the Contractor shall have been afforded the opportunity to inspect the affected plant or areas. When agreeing to cultivate land, the Contractor shall have no liability for subsequent weed growth.
9.2 Any grass seed supplied shall have been tested and shall conform to current EC Regulations. The Client acknowledges that a sward cannot be made in one season and several seasons and careful cultivation, weeding and feeding are essential and that no land is free from weeds and that accumulated weed growth and dormant weed seed cannot be eradicated in a limited number of cultivations. When agreeing to cultivate land, the Contractor shall have no liability for subsequent weed growth.

10 DISPUTES

10.1

Any party to this contract shall have the right, in the first instance, to refer any dispute or difference arising from the contract and occurring within the contract period to Outdoor-Creations for resolution having first given the other party 7 days written notice of their intent to do so. This written notice should contain a full description of the dispute or difference. Outdoor-Creations will nominate a representative within 3 working days to adjudicate in the matter. The representative shall be required to act fairly between the parties, to act in accordance with the Outdoor- Creations client complaint procedure, and to carry out the adjudication in accordance with the terms of the Contract. The adjudicator shall inform both parties of their recommendations in writing upon completion of their deliberations.

10.2Should the parties fail to reach agreement after following procedure outlined in clause 10.1 above, any party to this contract shall have the right to refer any dispute or difference arising from the contract and occurring within the contract period to adjudication for resolution.

10.3

In the event of a dispute or difference arising, either party may apply to the Association of Independent Construction Adjudicators (at 56/64 Leonard Street, London EC2A 4JX, tel 020 7608 5221, fax 020 7608 5081) for the nomination of a Registered Adjudicator, having first given the other party 7 days written notice of their intent to refer the dispute to adjudication to the other party.

10.4The AICA will nominate an adjudicator within 3 working days of receipt by them of a properly completed application form accompanied by a cheque for the appointment fee then prevailing.

10.5The parties shall be jointly and severally liable for the payment of the adjudicator’s reasonable fees and expenses and the adjudicator shall have power, when making his decision, to decide upon the allocation of his fees and expenses.

10.6The rules governing an adjudicator shall be those set down in the Scheme for Construction Contracts (England and Wales) Regulations 1988, for contracts in England and Wales.

11 NOTICES
Any notice under these Conditions shall be given in writing and sent by either pre-paid first class post or recorded delivery to the respective parties’ address stated in the Order and shall be deemed to have been received 48 hours after the date of posting.
12 RIGHTS OF THIRD PARTIES

12.1A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from the Contracts (Rights of Third Parties) Act 1999.

12.2This Contract sets out the entire agreement and understanding of the Client and the Contractor in relation to the subject matter of this Contract and supersedes any previous agreements between the parties in relation to this Contract.

13 THE PROPER LAW OF THE CONTRACT

This Contract shall be governed by and shall be constructed in accordance with English Law, and the Client and the Contractor submit to the non-exclusive jurisdiction of the English courts.